SC says Senate polls to be held through secret balloting

Ballot secrecy is not absolute, ECP bound to ensure free Senate Elections: SC short verdict

By: News Desk      Published: 10:22 AM, 1 Mar, 2021
SC says Senate polls to be held through secret balloting

The Supreme Court Monday ruled that the upcoming Senate elections will be held through the secret ballot, reported 24News HD TV Channel.

Supreme Court had reserved its opinion after all the lawyers had concluded their arguments in the Presidential Reference case.

The apex court gave the majority decision with a ratio of 4:1. A five-judge larger bench of the apex court, headed by Chief Justice of Pakistan Gulzar Ahmed and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Yahya Afridi pronounced the reserved opinion.

Justice Afridi however decided against holding the Senate polls through secret ballots and would write a note of dissent in the detailed decision to be issued at a later date.

The decision said the Senate elections would be held as per the constitution under Article 226.

The SC decision held the Election Commission of Pakistan (ECP) is empowered to take all measures to hold free and fair elections and curb corrupt practices under Article 218 of the Constitution.

The bench further observed that the secrecy is not “absolute”.

The SC has directed the ECP to use technology to stop the corrupt practices in the elections and directed all the institutions to help the ECP in this cause of holding a transparent election.

The SC said the authority to amend Article 226 lies with the parliament. However, the Supreme Court in its short decision has said the secrecy of the vote is not absolute and a vote cannot be kept secret for a lifetime.

Opinion text as follows:

The President of Islamic Republic of Pakistan has sent a reference under the Article 186 of the Constitution of the Islamic Republic of Pakistan 1973 for opinion of this court.

The question asked in the reference is as follows:  "Whether the condition of 'secret ballot' referred to in Article 226 of the Constitution of Islamic Republic of Pakistan, is applicable only for the elections held 'under' the Constitution such as the election to the office of President of Pakistan, Speaker and Deputy Speaker of National Assembly, Chairman and Deputy Chairman of Senate, Speakers and Deputy Speakers of the Provincial Assemblies and not to other elections such as the election for the members of the Senate of Pakistan held under the Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, Part 1, Fourth Schedule to the Constitution, which may be held by way of secret or open ballot, as may be provided for in the Election Act, 2017.?"

The Supreme Court said, “We have heard learned Attorney General for Pakistan, learned Advocate Generals of all four Provinces and ICT, learned counsel appearing for the National Assembly, the Senate of Pakistan, the Election Commission, Political Parties, Pakistan Bar Council, Sindh High Court Bar Association and the individuals, who have appeared in person. “

For the detailed opinion to be recorded later, the reference is answered as follows: “The Elections to the Senate of Pakistan are held "under the Constitution" and the law.”

“It is the duty of the Election Commission of Pakistan in terms of Article 218(3) of the Constitution, to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against on which this Court has given successive judgments and the most exhaustive being Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary & 6 others v.  Federation of Pakistan & 2 others (PLD 2012 SC 681).”

The apex court said that the Election Commission of Pakistan (ECP) is required by the Constitution to take all necessary steps in order to fulfil the above mandate/duty in terms of Article 222 of the Constitution, which empowers the Parliament, subject to the Constitution to legislate, inter alia, on the conduct of elections and matters relating to corrupt practices and other offences in connection with elections but categorically provides that, "no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission" under Part VIII, Chapter 1 of the Constitution.

“Further in terms of Article 220 of the Constitution, all the executive authorities in the Federation and Provinces are obliged to assist the Commissioner and the Election Commission of Pakistan in discharge of his or their functions, as provided for in Article 218(3) of the Constitution,” the opinion of country’s Supreme Court reads.

As far as the secrecy of ballot is concerned, this Court has already answered this question in a judgment of a 5-member Bench of this Court reported as Niaz Ahmad v. Azizuddin & others (PLD 1967 SC 466), where it has been held that secrecy is not absolute and that "the secrecy of the ballot, therefore, has not to be implemented in the ideal or absolute sense but to be tempered by practical considerations necessitated by the processes of election, the SCP said.

Furthermore, in order to achieve the mandate of the Election Commission in terms of Article 218(3) read with Article 220 and other enabling provisions of the Constitution and the law, the Election Commission is required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty to ensure that the election is "conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against".